Away Without Leave: Industrial Court Validates Dismissal by Head of the Civil Service of the Federation

Abuja – The Presiding Judge of the National Industrial Court of Nigeria, Abuja Judicial division, His Lordship, Hon. Justice Benedict Kanyip on Monday 3rd June 2019 validated the dismissal of Oko Michael Okata from the office of the Head of the Civil Service of the Federation via dismissal letter dated 21st March 2018.

His Lordship held that nothing before the Court to show that the claimant waited for approval of the sick leave application before taking off to his village and the claimant did not satisfactorily explain his absence from work for over 8 years.

The claimant filed the action on 7th June 2018, sought against defendant among others; A declaration that the letter of dismissal dated 21/03/2018 issued to the claimant by the defendant is wrongful, illegal, null, void and of no effect.

Likewise, An order directing the defendant to pay to the claimant all his monthly salaries, allowances, and entitlements with increments, that have become due from January 2009 until the date of his reinstatement to service and Special damages in the sum of N1,920,000.00

To the claimant, he was a Clerical Officer in the office of the defendant- Head of the Civil Service of the Federation. That while discharging his official duties at about 7.47pm sometime in May 2008, he fell from the staircase of the defendant and sustained severe, life-threatening injuries to his waist, hip, and legs. With all the pains to his legs, hips, and waist, he reported his fall and excruciating pains verbally to his superior officer.

That he subsequently reported his fall and excruciating pains to his legs, hip and waist to the defendant through his application for sick leave dated 20th May 2008. That with the excruciating and life-threatening pains, he continued reporting for work, waiting for reply to his sick leave application. That the defendant’s reply never came and he was dying off of pains.

At a point, that he could not walk as a result of swollen legs, hip, and waist and had to be carried to his village by relatives for further medical attention. That throughout the period of his treatment in the village, the defendant who knew that he was away from work for further medical attention never cited the claimant for “abscondment from duty” or commenced any disciplinary measures; but immediately he forwarded a letter to the defendant of his return from further medical attention, the defendant commenced disciplinary measures against him without following the procedures as laid down in the Public Service Rules, that the defendant then dismissed him through a letter dated 21st March 2018, hence this suit wherein he seeks reinstatement and monetary damages.

To the defendant, the claimant never reported the injury he claimed he sustained during the course of discharging his official duties, that the claimant who, however, applied for sick leave on 20th May 2008 did not wait for permission before he embarked on the aforesaid sick leave and never communicated the OHCSF.

That all efforts to reach the claimant proved abortive, hence his salary was stopped. That sometime in February 2017, approximately nine (9) years after, the claimant wrote a letter to the defendant, requesting for payment of his salary from January 2008 to December 2016. It was then that the defendant issued a query letter to the claimant to make representation as to his prolonged absence from duty without permission; Being dissatisfied with the representation made by the claimant, the defendant dismissed the appointment of the claimant and issued a dismissal letter dated 21st March 2018.

To the defendant, Public Service Rules provide that absence from duty without leave is serious misconduct that attracts dismissal that from the facts of this case and the evidence led before this Court, it was established that the claimant was absent from duty without leave from May 2008 to 2017 for about 9 years.

The defendant went on that the request for salary arrears by the claimant triggered the query letter dated 8th February 2017 that led to the representation made by the claimant at the instance of the defendant.

In argument, the Claimant counsel submitted that claimant was not invited and did not appear before the (Junior Staff) Committee that looked into his case and recommended his dismissal, that the defendant blatantly and arrogantly denied the claimant his inalienable right to fair hearing, urged the Court to set aside all the disciplinary procedures adopted and taken by the defendant that culminated in the dismissal.

In addition, the claimant maintained that by the Public Service Rule All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases, that from the date of the purported query and the date of his purported dismissal which is about four hundred (400) days, far beyond period mandatorily provided for by the rules that ENTIRE DISCIPLINARY PROCEDURE that culminated in a letter of dismissal to the claimant is wrongful, illegal, null and void.

The presiding Judge, Hon. Justice B. B. Kanyip after careful evaluation of the submission of both counsel held that nothing before the Court to show that the claimant waited for approval of the sick leave application before taking off to his village.

“Now, it is common knowledge that government work is done vide memos, not verbally. Rule 100216 of the PSR 2008 provides that sick leave is the absence of an officer from duty on account of ill-health as authorized by a Healthcare Provider. There is no proof before the Court a Healthcare Provider approved sick leave for the claimant.

“The claimant did not satisfactorily explain his absence from work for over 8 years. I so find and hold. I agree with the defendant that the claimant was aware that his salary was stopped as far back as 2008 and he did nothing about it until in 2017 when he applied for salary arrears.

“The claimant made an issue of not being given access to documents or reports used against him when he was queried by the defendant as enjoined by Rule 030306(i) of the PSR 2008. The circumstance of the claimant, in this case, does not logically make it possible for the defendant to adhere to this Rule. It was the claimant who was absent from work for 8 years or so. Every document or report that would explain his absence was in his possession. So of what documents or reports is the claimant hoping that the defendant would make available to him? I really do not know.” Justice Kanyip rules

On claimant assertion of 60 days within which procedures must commence and completed except where it involves criminal cases; the court held that since the Rules did not provide any sanction for non-compliance, the period stated is directory and not mandatory.

His Lordship dismissed the case for lacking merit.